If Supreme Court cases were decided on the basis of hypotheticals alone, then the federal government's latest effort to strengthen laws against child pornography would probably be found unconstitutional.
For a half hour on Tuesday, Supreme Court justices peppered Solicitor General Paul Clement with some tricky what-ifs to test the scope of the 2003 PROTECT Act, which targets anyone who "advertises, promotes, presents, distributes, or solicits" material as child pornography, even if it isn't really child porn (if, for example, it uses actors who are actually adults or uses virtual or digitally created child actors.) The case is United States v. Williams.
Justices had the most trouble with the word "presents." What about a movie reviewer who says a film includes child porn, asked Chief Justice John Roberts Jr. "Nothing to worry about," said Clement, though several justices still seemed worried. Justice John Paul Stevens posited a documentary (though he charmingly used the word "newsreel" instead) that depicts atrocities by soldiers in a war zone, including child rape? Could be a problem, said Clement.
Jusitce Ruth Bader Ginsburg's cinematic contribution: What about someone who states that the 1962 movie Lolita shows a 12-year-old having sex with an old man? Clement dismissed that one, asserting that people viewing mainstream movies will know it wasn't really a child actor. Justice David Souters' hypothetical painted a small-town America dilemma: would someone receiving unbidden child porn in the mail violate the law if he called up his police chief or a neighbor to report it? And would "schoolboys" passing around dirty pictures go to jail, asked Justice Stephen Breyer.
On and on it went, until an impatient Justice Samuel Alito Jr., who once served as a U.S. Attorney, asked, "Is there anything to suggest that any of these hypotheticals... are situations that occur with any frequency in the real world?" Clement needed a softball question like that one, and soon his time was up.
But Richard Diaz, the lawyer for the Florida man Michael Williams who was convicted under the law and is challenging it, did not turn the hypotheticals to his advantage, except to repeat that anyone snared by the law -- including a braggart who lied about the contents of a video -- could go to jail for five to 20 years.
In the end, in spite of the hypotheticals, the outcome was hard to predict. The justices, especially swing vote Anthony Kennedy, seemed eager to find a way to keep the law alive at least long enough to nail Williams, whose promotion of real child pornography was far from the hypothetical edges of the law.